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Wednesday, May 5, 2010

Obama
was right to criticize Arizona for passing the highly controversial Support Our
Law Enforcement and Safe Neighborhood Act (SB 1070). He was right, too, in
underscoring the federal government’s own irresponsibility in the intensifying
immigration policy crisis.

Obama lambasted the bill for threatening “to
undermine basic notions of fairness,” adding that the law puts community trust
in the police at risk while endangering civil liberties. "Our failure to act
responsibly at the federal level will only open the door to irresponsibility by
others,'' said Obama. Moreover, he warned that “if we continue to fail to act
at a federal level, we will continue to see misguided efforts opening up around
the country.''

The president, however, got it wrong about the full extent
of the federal government’s responsibility for the Arizona law. The failure of
Congress to act on a comprehensive immigration bill is certainly part of the
reason why Arizona and other states are taking the initiative on immigration
law.

But sins of omission are only part of the federal
government’s responsibility. The president also needs to own up to signs of
commission.

The president has failed to acknowledge that it has
been the federal government, not Arizona, which is has been leading the way in
fostering the involvement of local police in the enforcement of immigration
law. Nor did President Obama mention that it has been the Department of
Homeland Security, not Arizona, which has led the way in the criminalization of
immigrants with such programs as Operation Streamline.

Two Dueling Agendas

The new
anti-illegal immigrant law in Arizona highlights the two dueling strategies to
address what is commonly regarded as a broken immigration system: comprehensive
immigration reform (CIR) and “attrition through enforcement.”

The
responsible strategy, according to the president, would a comprehensive
immigration reform. The centerpiece of such a reform would be a pathway to
citizenship for the existing illegal immigrant population. While proponents
differ on the mix, a CIR package would likely include the following components
in addition to legalization: increased border security measures, biometric
identification or some system of worker verification, tough immigration
enforcement, and a new guestworker program.

Since 2005
the proposed CIR bills have become increasingly responsive to arguments that
border security and tough immigration enforcement must be in place before any
pro-immigration measures, such as legalization and temporary worker programs,
are considered. In addition, the proposed pathway to citizenship has also
become increasingly strewn with conditions that would reduce the number of
unauthorized immigrants who would be deemed eligible.

Even as CIR
proposals have increasingly incorporated measures aimed to appeal to the
political right and to those deeply concerned about the growth of the immigrant
population, the consensus for reform has narrowed – much to the consternation
of CIR proponents who had hoped that the adoption of an “enforcement first”
position would create the political space for Republicans and for moderate and
conservative Democrats to support CIR.

Among
liberals and CIR advocates, the Arizona law is regarded as yet another reason
why the federal government needs to act quickly to pass immigration reform. But
the passing of the harsh law also highlighted the seemingly unstoppable march
of the “attrition through enforcement” agenda.

With the
prospects for CIR fading – even as the new “tough but fair” version of CIR is
loaded with border security, immigration enforcement, and “get right with the
law” provisional legalization measures – the “attrition through enforcement”
approach to the country’s immigration policy crisis has become the prevailing
response.

The federal
government has not explicitly endorsed this response, but its actions are
closely attuned with this restrictionist agenda.

Even as the
White House and DHS continued to insist that only a CIR strategy will fix the
broken immigration system, it has systematically moved to make it increasingly
difficult for unauthorized immigrants (illegal border crossers and those
overstaying their visas) and for legal immigrants who have violated criminal
laws (mostly drug use) to live and work in the country. At the same time, DHS
has steadily strengthened border control through increased checkpoints,
increased agents, and increased border-control infrastructure.

Without
immigration reform, this federal response is effectively attrition through
enforcement -- albeit not as much enforcement and attrition as the restrictionist
forces demand. And this is where the Arizona law comes in – with new measures
to see that federal law is enforced and with new measures to criminalize
immigrants.

“The legislature
finds that there is compelling interest in the cooperative enforcement of
federal immigration laws throughout all of Arizona. The legislature declares
that the intent of this act is to make attrition through enforcement the public
policy of all state and local government agencies in Arizona. The provisions of
this act are intended to work together to discourage and deter the unlawful
entry and presence of aliens and economic activity by persons unlawfully
present in the United States.”

Like most
nonviolent, nonvigilante strategies to address what is regarded as “mass
immigration,” the latest legislative initiative in Arizona did not emerge
independently but can be readily traced to the research, analysis, and policy
advocacy of the restrictionist policy institutes in Washington, DC. These are
the Federation for American Immigration Reform (FAIR), NumbersUSA, and Center
for Immigration Studies (CIS).

CIS analyst Jessica Vaughn outlined a
six-part plan to systematically decrease the number of illegal immigrants
residing in the country. While supporting the Secure Border Initiative –
launched by DHS Secretary Michael Chertoff in 2005 and continuing with
Secretary Janet Napolitano’s commitment to “border security” – Vaughn argued
that even with tightened border security the country would still be burdened
with an “illegal alien” population of 11.5 million or more.

Given that mass deportation would be
both politically infeasible and immensely expensive, Vaughn explained that a
much less-costly and more politically feasible strategy would be to escalate
immigration enforcement by federal and local agencies. Two points in her
six-point plan referred to local law enforcement measures that would make
living and working in participating communities increasingly unbearable to
unauthorized immigrants.

As part of this “attrition through
enforcement” plan, she recommended:

· * “Increasing apprehensions
and detention of illegal immigrants through partnerships between federal
immigration and state and local law enforcement agencies.”

· *“Passing state and local
laws to discourage the settlement of illegal aliens and to make it more
difficult for illegal aliens to conceal their status.”

Other elements of the strategy, as
outlined in the CIS report, include mandatory employer verification, cracking
down on the use of false identity documents, reducing visa overstays, and
doubling the number of deportations through immigration raids and other federal
enforcement measures. To a large extent, DHS is pursuing these four recommended
initiatives as part of a dual strategy to demonstrate that it is committed to
enforcing immigration law and to lay the political foundation for immigration
reform.

Law Enforcement Partnerships

The Obama administration has also proved
an ardent advocate of increased federal-local cooperation in immigration
enforcement. Among other things, it has strongly supported collaborative
programs initiated by the Bush administration such as Operation Community
Shield, Criminal Alien Program, Fugitive Operation Teams, Operation
Stonegarden, Border Enforcement Security Taskforces (BEST), and the 287(g)
program – all of which involve local police and sheriff deputies in the
enforcement of immigration law.

In addition, the Obama administration
has consolidated and promoted the Secure Communities program, which was
developed under DHS Secretary Chertoff as a pilot project to encourage and
facilitate the checking of the immigration status of all those arrested by
local law enforcement. Secure Communities is advancing rapidly under Secretary Napolitano,
who has prioritized the detention and removal of all those DHS and the Justice
Department identity as “criminal aliens.”

Immigration and Customs Enforcement
(ICE), the DHS agency responsible for immigration investigations and interior
enforcement, has a special program to promote what its calls “law enforcement
partnerships.” ICE Access (Agreements of Cooperation in Communities to Enhance
Safety and Security) “provides local law enforcement agencies an opportunity to
team up with ICE to combat specific challenges in their communities.”

Established in 2007, ICE Access
underscores the increasing outreach of DHS to local law enforcement officials
in immigration and other homeland security matters. The program supports “a
multi-agency/multi/authority approach that encompasses federal, state, and
local resources, skills, and expertise.”

According to ICE ACCESS:

“State and local law enforcement play a
critical role in protecting our homeland because they are often the first
responders on the scene when there is an incident or attack against the United
States. During the course of daily duties, they will often encounter
foreign-born criminals and immigration violators who pose a threat to national
security or public safety.”

The
Arizona law highlights a deepening conundrum for the federal government. By no
means is DHS opposed on principleto
having local law enforcement join in
immigration enforcement. But it does insistthat such cooperation
be on the terms it sets. Having opened the door to federal-local cooperation, DHS is finding it hard to control the
eagerness of localities to join in the immigrant crackdown.

DHS
is alsofinding it hard
to make a coherent, persuasive argument against those who contend, asArizona Republicansdo, that local law
enforcement should allowed and indeed should be supported in their commitment
to arrest all lawbreakers, including unauthorized immigrants.

The CIS report projected a 51% drop in
five years in the number of unauthorized immigrants if, along with increased
border security through the Secure Border Initiative, the attrition strategy
were fully adopted. Increased enforcement certainly has resulted in a drop in
the size of immigrant community living illegally in the country.

According to DHS, the estimated number
of unauthorized immigrants decreased by 800,000 in 2008 to 10.8 million in
January 2009. Interior immigration enforcement, increased deportations, and the
recessionary economy all played a part in this decrease or “attrition”, as CIS
and Arizona legislators would say.

Arizona-Style Attrition

With its Support Local Law Enforcement Act, Arizona
not only adopted the “attrition through enforcement’ framework of the
restrictionist institutes. It also adapted parts of the federal playbook for
immigration enforcement: identifying new ways to increase what DHS calls “law
enforcement partnerships” and extending the federal government’s own focus on
the expanding category of “criminal aliens.”

Rather than waiting for DHS to reach out and expand
its own federal-local collaborative programs, Arizona politicians have asserted
the state’s right to enforce existing federal immigration laws.In the view of the supporters of the new law,
the main problem they are attempting to address is not some inadequacy in federal
immigration law. Rather it’s the failure of the federal agencies to adequately enforce
the law.

Under SB 1070 suspects are required to produce proof
of legal residency if police determine there is a reasonable suspicion that
they are in the country illegally. The Support Local Law Enforcement Act breaks
new legislative ground by defining the presence of an unauthorized immigrant in
the state as “trespassing,” making it a state crime to be an illegal immigrant
in Arizona.

SB creates a state charge of "willful failure to complete or carry an alien registration
document." Defenders of the law note that this state charge doesn’t trump
federal law but is an adjunct to the Alien Registration Act of 1940, which
requires that “every alien, eighteen years of age or older, shall at all times
carry with him and have in his personal possession any certificate of alien
registration….”

The new law no only target illegal immigrants
themselves, but it is also includes provisions aimed to target those who
support illegal immigrants by hiring them for day labor or who knowingly
transport them. What is more, the act prohibits state, city, or county
officials from limiting or restricting "the
enforcement of federal immigration laws to less than the full extent permitted
by federal law.”

Prepared with the assistance of the Immigration
Reform Law Institute, SB 1070 is peppered with language designed to protect the
law against legal challenges. The law, for example, mandates that police must
have a “reasonable suspicion” that a suspect is an unauthorized immigrant and
that police can’t independently determine the immigration status of a suspect
but must appeal to federal authorities to make such a determination. The law also states that a person’s “race,
color, or national origin” can’t be the sole reason for questioning about
immigration status.

As Dan Stein, president of the
restrictionist institute FAIR, notes:

“SB 1070 is a good bill. I should know. We and our legal
affiliate, the Immigration Reform Law Institute, had a hand in developing the
language based on years of expertise and experience to ensure it would survive
court challenge. The law ‘takes the handcuffs’ off local police to work with
federal authorities in enforcing U.S. immigration law. This law is both
constitutional and effective.”

The legal challenges to SB 1070 are
already lining up. Most will contend that the law will foster a climate of
enforcement that will lead to a pattern of violations of the U.S.
constitution’s equal protection clause and the Fourth Amendment’s protection
against unwarranted searches and seizures.

ACLU, MALDEF, and the National
Immigration Law Center have announced that they plan to challenge the law,
contending that it encourages racial profiling, endangers public safety, and
betrays American values. The Justice Department is also considering blocking
the implementation of the law, which is scheduled to take effect in August, on
the grounds that it violates the supremacy clause of the constitution and the
doctrine of preemption. Basically, the federal concern is that the Arizona law
illegally intrudes into the enforcement of immigration law, which is defined as
primarily a federal responsibility.

Challenge to Comprehensive Immigration Reform

It’s likely that SB 1070 will be judged,
in whole or in part, as unconstitutional and will never be fully implemented.
Even so the Arizona law marks another step forward in the consolidation of the
attrition through enforcement strategy, just as its Legal Workers Act of 2008,
which the courts have upheld, signaled the deepening dimensions of immigration
law enforcement.

The only possible redeeming feature of SB
1070 is to raise the level of alarm about the increasingly ugly manifestations
of the immigrant crackdown. But criticism of Arizona should not obscure the
reality that, with or without SB 1070, attrition through enforcement is the law
of the land.

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About the TransBorder Project

The TransBorder Project is a project of the Center for International Policy in Washington, DC. Directed by CIP senior analyst Tom Barry, the TransBorder Project and its Border Lines blog aim to foster policy alternatives and to improve understanding of such transborder issues as immigration, homeland security, border security, and the national security complex.